Have You Inadvertently Managed to Invalidate Your Will? Marriage, Separation and Divorce and Their Impact on Your Will

Most people understand the importance of a valid Will. Therefore, it would be more than unfortunate to invalidate a Will ‘accidentally’. However, certain key life events, such as marriage, separation, and divorce, can potentially impact a Will even to the extent of revoking (invalidating) it altogether. As such, it is important to understand what unintended consequences there may be as a result of these significant life events.

Should it transpire that there is no valid Will at the time of death, then a deceased’s estate would be distributed in accordance with the statutory ‘rules of intestacy’, which may not be the same as intended wishes.

At these times, estate planning may not be foremost in one’s mind, but it is sensible to consider a new Will when key life events occur to prevent a Will from becoming out of date or completely invalid.

Does marriage invalidate a Will?

In NSW, the Succession Act states that marriage normally revokes an existing Will. This means that a recently married person, if they have not had the time or understanding to create a new Will, would die intestate should they pass away.

It follows that couples should at least consider updating their Wills to ensure they still reflect their testamentary aims.

Exceptions to the marriage rule

There are some exceptions to the general rule, and some parts of a Will are not revoked on marriage. For example, if a Will appoints a spouse as an executor, trustee or guardian, the appointment remains in place. Similarly, any gifts left to a spouse are not revoked if death occurs before the Will is updated. However, the remainder of the Will would be revoked. This means that some expressed wishes may not be followed. Alternatively, a Will that is specifically written with the contemplation of a future marriage in mind can also avoid revocation.

A Will made in ‘contemplation of marriage’

‘Contemplation of marriage’ means that the Will is made in the context of the intention or expectation of marriage.

Case Study: Hoobin v Hoobin (2004)

In this case, the deceased had five children from his first marriage. Later he commenced a de-facto relationship and though he proposed marriage a number of times his partner delayed acceptance.

Having been diagnosed with cancer, in January 1999, the deceased decided to make a Will leaving his estate to his partner, also appointing her as executor. The Will also excluded his children without explanation. He told his solicitor that he was thinking of marrying his partner and he was advised to make the Will in contemplation of marriage. However, the deceased instructed that it should not be in contemplation of marriage as he expected to die before long. In the event he did marry his partner in June 2000 just days before he died.

The matter was heard in the NSW Supreme Court. The issue at hand was had the Will been revoked on his second marriage, or had the deceased made his Will in contemplation of his second marriage? The Court found that the deceased’s Will was revoked by his marriage. There was a need for a more definite state of mind than the ‘consciousness of the possibility of marriage’.

Does separation invalidate a Will?

Separation does not invalidate a Will because by law, the marriage still exists.

In NSW, a couple must be separated for 12 months before a Court will finalise their divorce. This means that any assets given to the former partner would still be distributed to them on the Will-makers death if the Will has not been updated.

Is a Will still valid after divorce?

Generally, divorce treats a reference to a former spouse in the Will as if they had predeceased the Will-maker. In effect, this means that the rest of the Will would still be valid, but an ex-spouse would not, for example, receive anything from the estate or be appointed as executor irrespective of what the Will says (unless there are specific contrary intentions in the Will).

Exceptions to the divorce rule

In NSW, if a Court finds that the deceased still intended that their former spouse receive gifts from the estate or be appointed executor, the gifts and appointment will still be valid notwithstanding the divorce.

Additionally, a former spouse's appointment as a trustee for property (the beneficiaries of which may include the ex-spouse’s children) will remain valid.

Reviewing your Will following life-changing events

Marriage

Marriage usually revokes a Will. However, some exceptions exist concerning the content of the Will. In addition, Wills made in contemplation of a ‘particular’ marriage will not be revoked by marriage whether the contemplation is expressed in the Will or not, though, as seen, this can be contentious.

Separation

Separation does not revoke a Will. However, this is an unsatisfactory situation for couples who have recently separated. It is important to change the Will, while divorce is pending, so that it reflects the latest testamentary wishes.

Divorce

Divorce will revoke gifts to a former partner as well as their appointment as an executor, trustee or guardian unless a contrary intention is expressed in the Will. However, it will not revoke the appointment of a former partner as trustee for property for the benefit of beneficiaries which may include the former spouse’s children. In addition, it may not necessarily prevent the former partner bringing a family provision claim against the estate.

Creating a new Will and reviewing your estate planning

Life changing events such as marriage, separation or divorce are times to consider creating a new Will and other key documents to ensure that your estate planning reflects your new testamentary objectives. This includes updating superannuation Binding Death Nominations.

Contact our Wills and Estate Planning Lawyers in Sydney, NSW

Whether you are contemplating marriage, separation and divorce, or just wishing to update your Will and estate planing, the experts at Szabo & Associates Solicitors are here to help. Please contact us on 02 9281 5088 or fill in the online form.